The Deserving Migrant

A false dichotomy haunts Democratic immigration reform

Joe Biden is confronted by Carlos Rojas at a November 2019 town hall. | Post and Courier

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Late last month, ahead of the Nevada caucuses that Bernie Sanders would win decisively with the help of Latinx voters, his campaign manager Faiz Shakir spoke at an Amnesty International forum in Las Vegas on asylum and immigration. Answering questions from voters and BuzzFeed News reporter Hamed Aleaziz, Shakir reiterated the senator’s commitment to breaking up Immigration and Customs Enforcement and Customs and Border Protection, ending the Migrant Protection Protocols (colloquially known as the “remain in Mexico” policy), and fundamentally rethinking the way that migrants are seen: not as potential threats, whether to national security or the economy, but as fellow humans to be cared for.

Released in November of last year, Sanders’s immigration platform is not only the most transformative of any candidate that ran for the Democratic Party’s presidential nomination this cycle; it also reflects how, over the last two decades, immigrants themselves have transformed the way that leftists and progressives think about immigration. Listening to front-line activists and organizers, and allowing them to shape his policy proposals, helped Sanders secure the endorsement of influential migrant justice groups like Make the Road Action and Mijente. “We literally took what they told us and put it into a policy,” Belén Sisa, the Sanders campaign’s Latinx press secretary, said after the platform was released. At another event in Nevada before the caucuses, Ana Maria Archila, co-executive director of the Center for Popular Democracy, cited the Sanders campaign’s commitment to a moratorium on deportations, asking Latinx voters to “close your eyes and imagine a country where we are not a target.” “People started to cry,” Archila told the New York Times. “We have never known what it feels like to be in this country and not be under threat.”

But Shakir’s answer to a question about the moratorium—which, according to the campaign, would last “until a thorough audit of current and past practices and policies is complete”—at the Amnesty International forum set off alarm bells in some parts of the migrant justice movement. “In the past two months, ICE has deported those who are convicted of double murder, accessory to murder, and others who are wanted for murder in their home countries,” Aleaziz asked. “Would Senator Sanders extend the moratorium to these individuals? And, if so, how long is this moratorium going to last?”

“We’re talking about violent criminal—violent criminals sit in jail or prison right now, upon their, the end of whatever sentence they may currently have, they would be deported,” Shakir said.

“Now that’s a tiny number, right?” he continued. “A tiny number of people on a case by case basis that would be outside of the moratorium. The moratorium would affect 99 percent of the people living here peacefully and contributing to America’s economy.”

“So it sounds like the moratorium is not just a broad moratorium for all deportations?” Aleaziz followed up.

“No, it starts with a broad moratorium. Yeah. It starts with a broad whole-scale, full sweep moratorium, acknowledging that there’s going to be case by cases that may need to be dealt with differently,” Shakir said.

In other words, while the Sanders campaign remains committed in principle to a moratorium on deportations, “violent criminals” who have been convicted and reach the end of their sentence during the period of the moratorium may be subject to removal. While Shakir presented this as commonsensical and consistent with the campaign’s previous commitments—Sanders himself said that the moratorium would apply to “99 percent of deportations” at the 2020 Iowa Brown & Black Presidential Forum in January—some supporters have perceived it as a departure: not a major break or a betrayal per se, but a warning sign that the campaign might flinch in a general election against a president that is sure to make immigration enforcement a key element of his re-election campaign. According to one analysis, Trump has spent more than $3.2 million on Facebook ads relating to immigration between last April and this February.

Listening to front-line activists and organizers, and allowing them to shape his policy proposals, helped Sanders secure the endorsement of influential migrant justice groups.

The qualified moratorium “is obviously not what we meant by a moratorium,” Tania Unzueta, Mijente’s political director told me in an email, “but we always expected to have to push a Sanders campaign and presidency . . . We got him this far, and we will push as far as necessary on positions that are critical to our communities.” As Mijente representatives have said elsewhere, “We are picking our target, not our savior.” Still, Unzuenta emphasized, Shakir had said that exceptions to the moratorium would be examined on a case-by-case basis. “This alone is a stark contrast to the three million deportations under the Obama/Biden administration,” she said. “Under Trump, we have only seen these conditions worsen. His administration does not even pretend to recognize the humanity of migrants.”

The Sanders campaign has not elaborated on or clarified Shakir’s remarks, and they did not respond to multiple requests for an interview or a list of questions I sent via email. But according to Unzueta, allowing the conversation to be guided by the figure of the “violent criminal,” however that is defined, is a mistake—and framing that was deliberately used against the campaign. “The question posed to [Shakir] was a setup,” she said. “The bigger problem is the interviewer’s choice to frame deportation within the most controversial examples that serve only to stir up fear and xenophobic hatred toward migrants.” Accepting the deserving/undeserving dichotomy “undermines the solidarity that is prevalent in every other aspect of Bernie’s platform—that it’s for all, not just for some,” said Kristian Steffany, a member of the Democratic Socialists of America’s National Political Committee.

This dichotomy was expressed most famously in President Obama’s 2014 promise to deport “felons, not families,” but the rhetorical flair of this categorization obscures a more difficult reality. “If you don’t think very hard about it, it’s commonsensical,” César Cuauhtémoc García Hernández, scholar of immigration law and author of Migrating to Prison, told me. “The complication is that people are not so easily boxed. We’re complicated, contradictory human beings. It’s really hard to boil us down to any one feature of our lives, and so trying to figure out who falls into the category of ‘violent criminal’ is necessarily difficult.”

The New York Immigrant Family Unity Project ensures that everyone in ICE custody in New York City is guaranteed access to an attorney, regardless of their criminal legal status. “We never wanted to play into the rhetoric of the ‘good, deserving’ immigrant versus the less deserving person who may have had contact with the criminal legal system,” said Sarah Deri Oshiro, an immigration attorney with the Bronx Defenders, one of the NYIFUP providers. In the same way, a full, unqualified deportation moratorium, she argued, “is truly necessary to recover from the harm that has been inflicted on immigrants and their communities for the last three years—and frankly even in the years under the Obama administration.”

“No one has asked the candidates to state their unequivocal opposition to deportations,” Tania Unzueta told me. Instead, people who have had their entire worlds devastated by the terror inflicted on communities by the current system have come to the candidates and simply asked if they would be willing to consider granting a temporary reprieve. A moratorium is, literally and by definition, a temporary measure. And a moratorium on deportations is the minimum standard of respect for human rights that any newly elected president should commit to when assuming office and taking over the reigns from an administration that has so wantonly wielded the immigration and criminal justice systems to persecute poor migrants of color.

While Sanders was the first major candidate to commit to a moratorium of any sort, in the week before the Nevada caucuses Elizabeth Warren also promised to institute a hundred-day moratorium, after saying she was “open” to the idea last year. Following much back and forth, Joe Biden committed to a similar proposal on the day of the caucuses. But Unzuenta described Biden’s position as “smoke-and-mirrors . . . [the] politically-expedient move of a then-struggling campaign.” Steffany was likewise skeptical. “All it really speaks to is Bernie’s campaign and these movements that have helped build his platform, that they’re the ones setting the framework,” she told me. “That’s most obvious when we’re talking about Medicare for All, because now everyone has to contend with that framework . . . . But it’s always important to keep in mind who is actually confronting power and who is just saying what people want to hear.”

While Sanders’s immigration platform is not without its flaws, it represents a fundamentally different way of thinking about how the United States might receive migrants, refugees, and asylum seekers. On the other hand, even if Biden shares in liberal outrage over the Trump administration’s immigration policies, he has not offered a comprehensive vision of how differently he would do things. According to a Washington Post survey of the presidential candidates’ positions on several immigration-related questions, Biden’s positions on extending existing border walls and barriers, breaking up or abolishing Immigration and Customs Enforcement, and the detention of families seeking asylum while their applications are processed are all unclear.

Like Sanders, Biden supports the creation of a pathway to citizenship for undocumented people already living in the United States, as well as increasing aid to the Central American countries from which migrants are fleeing; however, unlike Sanders, Biden opposes the decriminalization of border crossing. When the question was raised at a debate last year, Biden defaulted to the same right-wing talking points that have structured Democrats’ thinking about immigration for decades. “If you say you can just cross the border, what do you say to all of those people around the world who want the same thing—to come to the United States and make their case—that they have to wait in line. The fact of the matter is . . . if you cross the border illegally, you should be able to be sent back. It’s a crime,” the former vice president said at a debate in July. At a debate in September, Biden, who has barely any Latinx support, went so far as to insist that the Obama administration “didn’t lock people up in cages,” which they absolutely did.

In fact, the migrant crisis that escalated during Obama’s second term with the spike in arrivals of children and families from El Salvador, Honduras, and Guatemala not only had its roots in U.S. foreign policy broadly, but in the policy agenda pursued by Biden specifically. “The crisis had been partly caused by Biden and would now be fueled by him again,” journalist Branko Marcetic argues in Yesterday’s Man: The Case Against Joe Biden. Biden was “one of the architects,” as he put it himself, of the Clinton-era Plan Colombia, which used the War on Drugs as a pretext to open up the country to foreign investment. In turn, this qualified him to serve as a figurehead for the Obama-era Alliance for Prosperity, which offered Central American countries financial incentives in exchange for greater immigration enforcement at their own borders. “Those incentives advanced privatization, free trade zones with special regulatory carve-outs for foreign investors, and the creation of logistics corridors for the movement of goods and new infrastructure, such as a new gas pipeline that opened up markets for U.S. exporters,” Marcetic notes. “Ironically, these policies were set to perpetuate the very economic and environmental conditions that led migrants to flee the region, and peasants, indigenous people, and environmental activists to protest, and, sometimes, die over.”

Throughout the 1980s and 1990s, Biden supported the crime and drug bills that expanded the carceral state and the deportation machine that would be turned against immigrants when he was vice president. “Those who are pondering risking their lives to reach the United States should be aware of what awaits them,” he said in 2014. “It will not be open arms.” Last year, Biden refused to apologize for the three million deportations executed by the Obama administration. In February, he resentfully admitted that it was a “big mistake,” though not before he told Carlos Rojas, then a Movimiento Cosecha organizer who had confronted him at a town hall, that he “should vote for Trump.” (The Sanders campaign hired Rojas.)

Under the Trump administration, the Obama deportation machine has been “pushed to its extremes,” Steffany said. “The mechanisms that existed are being expanded. It’s becoming more arbitrary, casting a wider net. And the people on the other side are actually starting to see it as this horrible machine.” Members of DSA, which supports the abolition not only of ICE but borders altogether, made sure to incorporate Sanders’s proposed moratorium on deportations into their canvassing scripts in Texas. (Disclosure: I’m a member of DSA.) “Most people don’t have an issue with it—or at least haven’t brought it up,” Steffany told me. “People just see deportations as a bad thing. They see people in cages as a bad thing. That’s where they’re coming from. Almost immediately they’re just like, ‘Okay, so what about health care.’”

So to carve out an exception on such a moratorium, Oshiro said, applies a “fundamentally flawed lens” to the communities most at risk of removal. “There is still this disconnect in realizing that non-citizens are people that have historically and now continue to pay a double punishment for an alleged offense,” she continued. “In the last few years, as ideas about criminal justice ‘reform’—I put that in quotation marks—become a little bit more popular and mainstream, there’s a way in which non-citizens get left behind,” she said. Local police departments or a more progressive district attorney might chose to exercise prosecutorial discretion when it comes to low-level drug charges, for example, meaning that someone alleged to possess a small amount of marijuana could be brought to a police precinct to have their fingerprints run before being given a ticket for a court date and released. “While that might be a meaningful act of discretion for a U.S. citizen, because it truly does change the impact on his or her life—they get to go home, they’re not arrested, they’re not in central booking—for a non-citizen, it’s not enough,” Oshiro said. When a non-citizen’s fingerprints are run, that information is passed into federal law enforcement databases, and ICE is alerted to the fact that they have an upcoming court date.

If Biden shares in liberal outrage over the Trump administration’s immigration policies, he has not offered a comprehensive vision of how differently he would do things.

In jurisdictions that have resisted bail reform efforts, where huge numbers of people are locked up in pre-trial detention for the crime of not being able to afford to pay their bail, immigrants again find themselves doubly punished. “The evidence consistently shows that people are much more likely to accept guilty pleas, regardless of their innocence or whether they have strong defenses to assert at trial, simply because they want to go home, they don’t want to lose their jobs, they need to be present for their lives, their children. They take pleas to get out of jail and close that chapter of their life,” Oshiro told me. “And then those are the people walking around with the quote-unquote criminal record, who then become the low-hanging fruit for ICE to go after, apprehend, detain, and ultimately deport.” Bronx Defenders’ non-citizen clients regularly enter guilty pleas earlier in their cases simply to limit their exposure to ICE agents lurking around the courthouses, she said. “If there were a carveout to any potential moratorium on deportation, they might fall within the carveout rather than within the protection.”

While formally distinct, the criminal legal system and the immigration enforcement system are interlocking structures that must be considered as a whole. “The overlap of who’s being targeted by the police and the criminal legal system in the Bronx,” Oshiro said, “and the people being targeted by ICE for detention and deportation—it’s an extremely overlapping Venn diagram of people.”

As Joe Biden’s record reminds us, this has not happened by accident. The same carceral logic that expanded the federal government’s ability to cage black and brown citizens throughout the 1980s and 1990s has also built up its ability to detain and deport black and brown non-citizens. “It wasn’t just the same period of time coincidentally,” García Hernández said. “It was actually the same pieces of legislation.” By way of example, he pointed to the concept in immigration law of the “aggravated felony.” Immigrants convicted of crimes that fall into this category can be deported without a removal hearing, are ineligible for asylum, and are permanently prohibited from re-entering the United States once deported. When it was enacted in 1988, the “aggravated felony” category only referred to murder and trafficking of drugs or particular firearms; today, it includes twenty-one categories of crimes, some of which have their own subcategories. The crimes covered range from sexual abuse of a minor to counterfeiting to failure to appear for a court hearing.

“Any policy that tries to box people into categories of ‘good’ and ‘bad’ has proven impossible to contain. It’s simply too tempting and too easy to expand a little bit, a little bit, and a little bit more,” García Hernández said. “It’s hard to imagine that any administration, including a potential Sanders administration, would be able to neatly constrain that.”

But the proposed moratorium on deportations is just one aspect of the Sanders platform, which comprises a slew of policies that would improve the lives of all working people, including immigrants, documented and undocumented alike—ending cash bail, for example, to say nothing of universalist social programs like Medicare for All or cancelling student debt. All of these taken together are why groups like Make the Road Action and Mijente endorsed Sanders, why so many rank-and-file members of the heavily-immigrant Nevada Culinary Workers Union Local 226 broke with their leadership and supported him in the caucuses, and why Latinx voters in California and Texas turned out for him in such numbers on Super Tuesday. “People are beginning to reject the distinction of the deserving and the less deserving,” Steffany said. “We’re seeing it in the massive turnout in Latinx voters in Texas and California. People are seeing [Trump’s immigration policies] as an attack on all of us. And for a lot of people, voting is one of the first steps in trying to make change.”

If the political revolution is truly for the entire multiracial, many-gendered, cross-generational working class, then it must also be for the criminalized. As his commitment to re-enfranchising people who have been convicted of felonies shows, Sanders is already part of the way there. Still, there is more to be done. “Once we start making exceptions, it’s only a matter of time before those exceptions get used against us,” Steffany said. “We need to fight for everybody. Full stop.”

Brendan O’Connor is a freelance journalist working on a book about immigration, capitalism, and the far right for Haymarket.